Jordaan v Msweli  EL 188/05; ECD 488/05 - suspensive conditions in an agreement of sale of land - fulfilment, nature of - per Plasket, J.
IN THE HIGH COURT OF SOUTH AFRICA
(EAST LONDON CIRCUIT LOCAL DIVISION)
Case No: EL188/05;ECD488/05
Date Heard: 8/6/07
Date Delivered: 19/6/07
In the matter between:
H.C.W. JORDAAN - FIRST PLAINTIFF
G. JORDAAN - SECOND PLAINTIFF
Z. MSWELI - DEFENDANT
In a special plea, the defendant (the seller) pleaded that two clauses of an agreement of sale were suspensive conditions in his favour and that they had not been fulfilled or waived by him. It was held that the first - a so-called subject-to-bond clause - was inserted into the agreement in favour of the plaintiffs, as purchasers, and that they were entitled to waive reliance on it as they had done. It was held that the second, which related to the furnishing of guarantees for purposes of payment of the purchase price, was not a suspensive condition but a term.
Consequently, the agreement did not fail on account of its nonfulfilment. The special plea was dismissed. Finally, the defendant failed to plead over on the merits. It was held that he should have done so, as this was the practice in this and other Divisions (although the practice in the Cape Provincial Division was somewhat different). An application for leave to plead over on the merits, which was not opposed by the plaintiffs, was granted.